Philip Barden, head of litigation, Devonshires
A second bite at the cherry
Social landlords are used to appeals but how do you know when a judgement is worth challenging?
There are four criteria in deciding whether or not to appeal a judgement: chances of success; costs to be incurred; wider implications of any judgement; and any other tactical reason that makes an appeal worthwhile.
It is always a case of looking at the balance between the risk and reward of an appeal to assess if this course of action is worth taking. That decision can change within the appeal process and appeals can always be commenced and then abandoned before any hearing - although, in this case, the party giving up will pay the other side’s costs, subject as always to any other arrangement agreed between the parties.
Every social landlord considering appealing a judgement should always get written advice from its lawyers to produce an informed decision. It is only in a few cases that there is a right to appeal. Most cases require the court’s permission.
The chances of success
Most appeals are based only on points of law so it can be hard for lay clients to assess the merits. Lawyers should always give written advice stating the chances of success.
The ordinary rule of thumb is: only appeal where there is a good chance of success. Pursuing a losing appeal can be tactically justified, but in this case the costs and risks must be fully explained and signed-off by the client.
Costs
Appeals can cost significantly less than a trial but not always, so make sure you secure a firm estimate.
Establish if the existing counsel will be retained, or whether you need new counsel (always more expensive) or even leading counsel (a QC).
If you need leading counsel do you need a junior also? These decisions can significantly impact costs and, sometimes, the chances of success. It is often said that in difficult cases it is worth retaining leading counsel since the court is more likely to give detailed consideration to the arguments.
Cost recovery is an important issue. This is not possible against respondents using the legal aid system. Consider the risk of paying costs and if so, how much they are likely to amount to.
Where there are good prospects of success against a non-legally aided party, consider taking out insurance to protect against the risk of having to pay adverse cost orders. This is known as after the event insurance. The government is currently reviewing ATE and considering whether it should be permitted.
Wider implications
Is it just a case of looking at the decision in isolation or does it have any wider implications such as in Weaver v L&Q which concerns the status of housing associations?
If there are wider implications then consider amalgamating appeals, cost sharing and picking a test case to appeal in order to maximise the chances of success. In cases with broader implications the regulator and funders’ views may be considered in the decision making process.
Other factors
There are many reasons why an appeal is tactically made when the chances of success are not good. Examples include:
- Where the respondent to the appeal is under financial pressure and so appealing and delaying enforcement of the judgement may provide a platform to negotiate a better settlement than the judgement;
- To buy time to avoid an outcome that otherwise may arise - an example is the litigant who appealed a judgement to buy time to avoid an inquiry which would have cost around £1 million and would have been ordered but for the delay caused by the appeal. The appeal cost many times less;
- When in the knowledge that other similar cases are under appeal and the law may be changed;
- In some cases evidence may emerge after a trial that was not available previously despite reasonable investigations and which may have changed the outcome of the case.
In those circumstances an appeal may be launched and a retrial sought - this involves also making an application to bring forward new evidence;
- In commercial cases you may have to appeal to mitigate loss, for example if you are seeking to pass on a claim to another party;
- If you are insured and your insurers direct an appeal.
The key factor is to make informed decisions in the knowledge of the risk profile.
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